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'Palloneville' lawsuit must prove 'actual malice'

| Tuesday, June 23, 2015, 1:16 a.m.

The success of New Kensington-Arnold School Board member Patrick Petit's defamation lawsuit against an anonymous blog poster could hang on a legal term established in a 1964 Supreme Court case.

The term “actual malice” — which was developed out of the case New York Times v. Sullivan — requires an elected public official to prove that a speaker knew that statements they made were false and reckless.

Petit, a former mayor of New Kensington, filed suit in Westmoreland County Court last week claiming he was the target of false statements made on the now defunct blog “Palloneville,” a website used to criticize officials in New Kensington and Arnold.

Petit's suit claims that a poster using the name “Valley Pride?” wrongly accused him of “being a crook in charge of money.”

Petit is seeking $30,000 in damages.

Robert Richards, a Penn State professor and the founder of the Pennsylvania Center for the First Amendment, said that it's unlikely that Petit could actually win the lawsuit, since elected officials are held to the highest standard of proof in a defamation suit.

The burden will be on Petit to prove that the anonymous commenter knowingly made false statements that damaged Petit's reputation, according to Richards.

Richards worries more that the anonymous poster's identity will be revealed.

“It's extremely tough to prove,” Richards said of actual malice. “We have long protected anonymous speech in this country.

“You want people to anonymously be able to blow the whistle, so to speak, and not be afraid to speak their minds.

“That right is threatened to be eroded by suits like this.”

Petit's attorney, David Millstein, said he believes he can prove actual malice.

“People have the right to speak anonymously,” Millstein said. “People have the right to speak about public officials.

“It's one thing to be critical of a public official,” he said. “But no one has the right to accuse anyone of committing a crime.

“When that statement is made with no basis in fact and with no effort to verify the claims, that's malice.”

Whether Petit can prove actual malice, it won't be hard for Petit to find out the poster's identity, Richards said.

“The elected official can ask the court to compel the blog site to unveil the anonymous poster's identity,” he said. “The site will reveal the poster's IP (Internet Protocol) address.

“There isn't a set standard that courts use to decide whether the poster's identity should be revealed,” he said. “Really, it's up to the judge.”

Richards said the site that hosted “Palloneville,” Wordpress, is protected from defamation suits.

Wordpress has a link on its site that allows the public to make complaints against blogs hosted by the company.

Sara Rose, a staff attorney for the American Civil Liberties Union Pennsylvania Chapter, said that her organization would be more inclined to get involved with the case if the poster's identity was revealed without Petit providing a valid reason for the poster's identity to be revealed.

“The plaintiff has to show that it's a valid case,” Rose said. “Anyone can file a lawsuit, but the judge must show that on the basis of the complaint there is a valid action.

“We feel very strongly about ensuring that courts do not automatically grant these subpoenas,” she said. “The important part is that the person has a chance to object without losing their anonymity.”

Richards referred to the suit as a SLAPP suit, or a strategic suit against public participation.

“Sometimes people file these lawsuits just to cause trouble,” he said. “The whole process can cause the defendant a lot of time and money.

“Pennsylvania has one of the weakest anti-SLAPP laws in the country,” Richards said. “Other states, like California, have laws that set a high standard for elected officials to even be able to file a suit like this.”

Millstein, Petit's lawyer, rejected that term.

“SLAPP suits are generally designed to get people to shut up,” he said. “This case is different. “Both federal and state law protect people from being falsely accused of a crime.”

R.A. Monti is a freelance reporter for Trib Total Media.

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